TRAVELOCITY.COM LP v. Bladimir Boyiko
Claim Number: FA0902001245545
Complainant is TRAVELOCITY.COM
LP (“Complainant”), represented by CitizenHawk,
Inc.,
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <travekocity.com>, <travelocityca.com>, <travelogity.com>, <traveloscity.com>, <travelovity.com>, <traveolocity.com>, <trqvelocity.com>, and <trvelocity.com>, registered with Enom, Inc.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Tyrus R. Atkinson, Jr., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on February 2, 2009; the National Arbitration Forum received a hard copy of the Complaint on February 2, 2009.
On February 2, 2009, Enom, Inc. confirmed by e-mail to the National Arbitration Forum that the <travekocity.com>, <travelocityca.com>, <travelogity.com>, <traveloscity.com>, <travelovity.com>, <traveolocity.com>, <trqvelocity.com>, and <trvelocity.com> domain names are registered with Enom, Inc. and that Respondent is the current registrant of the names. Enom, Inc. has verified that Respondent is bound by the Enom, Inc. registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On February 4, 2009, a Notification
of Complaint and Commencement of Administrative Proceeding (the
"Commencement Notification"), setting a deadline of February 24, 2009
by which Respondent could file a response to the Complaint, was transmitted to
Respondent via e-mail, post and fax, to all entities and persons listed on
Respondent's registration as technical, administrative and billing contacts,
and to postmaster@travekocity.com, postmaster@travelocityca.com,
postmaster@travelogity.com, postmaster@traveloscity.com,
postmaster@travelovity.com, postmaster@traveolocity.com, postmaster@trqvelocity.com,
and postmaster@trvelocity.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On March 2, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Tyrus R. Atkinson, Jr., as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent." Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <travekocity.com>, <travelocityca.com>, <travelogity.com>, <traveloscity.com>, <travelovity.com>, <traveolocity.com>, <trqvelocity.com>, and <trvelocity.com> domain names are confusingly similar to Complainant’s TRAVELOCITY mark.
2. Respondent does not have any rights or legitimate interests in the <travekocity.com>, <travelocityca.com>, <travelogity.com>, <traveloscity.com>, <travelovity.com>, <traveolocity.com>, <trqvelocity.com>, and <trvelocity.com> domain names.
3. Respondent registered and used the <travekocity.com>, <travelocityca.com>, <travelogity.com>, <traveloscity.com>, <travelovity.com>, <traveolocity.com>, <trqvelocity.com>, and <trvelocity.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, TRAVELOCITY.COM LP, is a leading provider of consumer-direct travel services and products through its various websites. Since its inception in 1996, Complainant has operated under the TRAVELOCITY mark and has registered the mark with the United States Patent and Trademark Office (“USPTO”) (i.e. Reg. No. 2,254,700 issued June 22, 1999).
Respondent registered the disputed domain names on their
respective dates: <travekocity.com> (September 27, 2001), <travelocityca.com> (August 7, 2001), <travelogity.com>
(October 28, 2000), <traveloscity.com> (March 5, 2000), <travelovity.com>
(June 22, 2001), <traveolocity.com> (June 12, 2001), <trqvelocity.com>
(September 28, 2001), and <trvelocity.com> (April 1, 2002). Each disputed domain name resolves to a
website that displays pay-per-click advertising, some of which promotes
Complainant’s competitors.
Respondent has also been the respondent in several other UDRP proceedings in which the disputed domain names were transferred from Respondent to the respective complainants in those cases. See, e.g., Smith & Hawken, Ltd. v. Bladimir Boyiko, FA 755733 (Nat. Arb. Forum Sept. 6, 2006); see also Compania Mexicana de Aviacion, S.A. de C.V. v. Bladimir Boyiko, FA 1195963 (Nat. Arb. Forum Jul. 9, 2008).
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
The Panel finds that Complainant’s registration of the TRAVELOCITY
mark with the USPTO adequately demonstrates Complainant’s rights in the mark
pursuant to Policy ¶ 4(a)(i). See Expedia, Inc. v. Tan, FA 991075
(Nat. Arb. Forum June 29, 2007) (“As the [complainant’s] mark is registered
with the USPTO, [the] complainant has met the requirements of Policy ¶
4(a)(i).”); see also Reebok Int’l Ltd. v.
Respondent’s <travekocity.com>, <travelocityca.com>, <travelogity.com>,
<traveloscity.com>, <travelovity.com>, <traveolocity.com>,
<trqvelocity.com>, and <trvelocity.com> domain
names contain Complainant’s TRAVELOCITY mark and make the following changes:
(1) various misspellings and/or additions/removals of letters; and (2) adding the
generic top-level domain (“gTLD”) “.com.”
The Panel finds that the addition of a gTLD is not relevant in a Policy
¶ 4(a)(i) analysis. Moreover, the
misspellings of a mark generally fail to create a meaningful distinction
between disputed domain names and a mark.
Therefore, the Panel finds that the disputed domain names are
confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i). See
Isleworth Land Co. v. Lost in Space, SA, FA 117330 (Nat. Arb. Forum Sept.
27, 2002) (“[I]t is a well established principle that generic top-level domains
are irrelevant when conducting a Policy ¶ 4(a)(i) analysis.”); see also
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant has alleged that Respondent lacks rights and legitimate interests in the disputed domain names. Based upon the allegations made in the Complaint, the Panel finds that Complainant has established a prima facie case pursuant to Policy ¶ 4(a)(ii), thus shifting the burden of proof to Respondent. Since Respondent has not responded to the Complaint, the Panel may presume that Respondent lacks rights and legitimate interests in the disputed domain names pursuant to Policy ¶ 4(a)(ii). However, the Panel in its discretion chooses to examine the record to determine whether Respondent has any rights or legitimate interests pursuant to the factors outlined in Policy ¶ 4(c). See AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interest in the subject domain names.”); see also Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also Broadcom Corp. v. Ibecom PLC, FA 361190 (Nat. Arb. Forum Dec. 22, 2004) (“Respondent’s failure to respond to the Complaint functions as an implicit admission that [Respondent] lacks rights and legitimate interests in the disputed domain name. It also allows the Panel to accept all reasonable allegations set forth…as true.”).
The Panel notes that the WHOIS information lists Respondent
as “Bladimir Boyiko.” Moreover,
Complainant argues that Respondent is not permitted or authorized to use
Complainant’s mark. Complainant asserts,
and the Panel so finds, that Respondent is not nor has ever been commonly known
by the disputed domain names under Policy ¶ 4(c)(ii). See
Broadcom Corp. v. Intellifone Corp., FA 96356 (Nat. Arb. Forum Feb. 5,
2001) (finding no rights or legitimate interests because the respondent is not
commonly known by the disputed domain name or using the domain name in
connection with a legitimate or fair use); see
also Ian Schrager Hotels,
L.L.C. v. Taylor, FA 173369 (Nat. Arb.
Forum Sept. 25, 2003) (finding that without demonstrable evidence to support
the assertion that a respondent is commonly known by a domain name, the
assertion must be rejected).
Respondent’s disputed domain names resolve to websites that promote Complainant’s competitors via click-through advertising and links. The Panel presumes Respondent has conducted this venture for the receipt of referral fees. Therefore, the Panel finds that Respondent has failed to create a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Persohn v. Lim, FA 874447 (Nat. Arb. Forum Feb. 19, 2007) (finding that the respondent was not using a disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use by redirecting Internet users to a commercial search engine website with links to multiple websites that may be of interest to the complainant’s customers and presumably earning “click-through fees” in the process); see also St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (holding that using an identical or confusingly similar domain name to earn click-through fees via sponsored links to a complainant’s competitors does not represent a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)).
Complainant has asserted that Respondent engaged in
typosquatting by registering the instant disputed domain names. Typosquatting occurs when a domain name is
registered with the intent of diverting Internet users by way of common typing
errors to a different website. Here,
Respondent simply misspelled various aspects of Complainant’s mark. The Panel therefore finds that Respondent’s
use of typosquatting is itself evidence that Respondent lacks rights and
legitimate interests pursuant to Policy ¶ 4(a)(ii). See IndyMac Bank
F.S.B. v. Ebeyer, FA 175292
(Nat. Arb. Forum Sept. 19, 2003) (finding that the respondent lacked rights and
legitimate interests in the disputed domain names because it “engaged
in the practice of typosquatting by taking advantage of Internet users who
attempt to access Complainant's <indymac.com> website but mistakenly
misspell Complainant's mark by typing the letter ‘x’ instead of the letter
‘c’”); see also LTD Commodities LLC v. Party Night, Inc., FA 165155 (Nat. Arb. Forum Aug. 14,
2003) (finding that the <ltdcommadities.com>,
<ltdcommmodities.com>, and <ltdcommodaties.com> domain
names were intentional misspellings of Complainant's LTD COMMODITIES mark
and this “‘typosquatting’ is evidence that Respondent lacks rights or
legitimate interests in the disputed domain names”).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent has been the respondent in several other UDRP proceedings in which the disputed domain names were transferred from Respondent to the respective complainants in those cases. See, e.g., Smith & Hawken, Ltd. v. Bladimir Boyiko, FA 755733 (Nat. Arb. Forum Sept. 6, 2006); see also Compania Mexicana de Aviacion, S.A. de C.V. v. Bladimir Boyiko, FA 1195963 (Nat. Arb. Forum Jul. 9, 2008). The Panel finds that this constitutes a pattern of bad faith registration and use under Policy ¶ 4(b)(ii). See Nat’l Abortion Fed’n v. Dom 4 Sale, Inc., FA 170643 (Nat. Arb. Forum Sept. 9, 2003) (finding bad faith pursuant to Policy ¶ 4(b)(ii) because the domain name prevented the complainant from reflecting its mark in a domain name and the respondent had several adverse decisions against it in previous UDRP proceedings, which established a pattern of cybersquatting); see also Arai Helmet Americas, Inc. v. Goldmark, D2004-1028 (WIPO Jan. 22, 2005 (finding that “Respondent has registered the disputed domain name, <aria.com>, to prevent Complainant from registering it” and taking notice of another Policy proceeding against the respondent to find that “this is part of a pattern of such registrations”).
The resolving websites for the disputed domain names display
advertisements for Complainant’s competitors.
The disruptive nature of this endeavor with regards to Complainant’s
business is clear, and therefore the Panel finds that Respondent has engaged in
Policy ¶ 4(b)(iii) bad faith registration and use of the disputed domain names. See Travant Solutions, Inc. v. Cole, FA 203177 (Nat. Arb. Forum Dec. 6, 2003) (“Respondent
registered and used the domain name in bad faith, pursuant to Policy ¶
4(b)(iii), because it is operating on behalf of a competitor of Complainant . .
.”); see
also David
The Panel finds that Respondent has created a likelihood of
confusion as to Complainant’s source of, or affiliation with, the disputed
domain names and resolving websites. The
Panel infers Respondent primarily intended to garner commercial benefit through
the registration and use of the confusingly similar disputed domain names and
the resulting advertisements on the corresponding websites. Thus, Respondent has engaged in bad faith
registration and use under Policy ¶ 4(b)(iv).
See GMAC LLC v. WhoisGuard
Protected, FA 942715 (Nat. Arb.
Forum May 9, 2007) (“Under Paragraph 4(b) of the Policy, evidence that a domain
name registrant has intentionally attempted to attract, for commercial gain,
Internet users to the registrant’s website by creating a likelihood of
confusion with the complainant’s mark serves as evidence of bad faith.”); see also Williams-Sonoma, Inc. v. Fees, FA 937704 (Nat. Arb. Forum Apr. 25,
2007) (holding that the use of a confusingly similar domain name to display
links to various third-party websites demonstrated bad faith registration and
use pursuant to Policy ¶ 4(b)(iv)).
The Panel finds that Respondent’s engagement in
typosquatting constitutes evidence of bad faith registration and use pursuant
to Policy ¶ 4(a)(iii). See Zone Labs, Inc. v. Zuccarini,
FA 190613 (Nat. Arb. Forum Oct. 15, 2003) (“Respondent’s registration
and use of [the <zonelarm.com> domain name] that capitalizes on the
typographical error of an Internet user is considered typosquatting.
Typosquatting, itself is evidence of bad faith registration and use pursuant to
Policy ¶ 4(a)(iii).”); see also K.R. USA, INC. v. SO SO
DOMAINS, FA 180624 (Nat. Arb. Forum Sept.
18, 2003) (finding that the respondent’s registration and use of the <philadelphiaenquirer.com>
and <tallahassedemocrat.com> domain names capitalized on the
typographical error of Internet users seeking the complainant's THE PHILADELPHIA
INQUIRER and TALLAHASSEE DEMOCRAT marks, evincing typosquatting and bad faith
pursuant to Policy ¶ 4(a)(iii)).
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <travekocity.com>, <travelocityca.com>, <travelogity.com>, <traveloscity.com>, <travelovity.com>, <traveolocity.com>, <trqvelocity.com>, and <trvelocity.com> domain names be TRANSFERRED from Respondent to Complainant.
Tyrus R. Atkinson, Jr., Panelist
Dated: March 16, 2009
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